Office of the Attorney General
State of Texas

Re: Whether a sheriff or constable may provide law enforcement
services under contract with a private homeowners association, in
light of article 1581b-2, V.T.C.S.

Dear Representative Keller:

You state that the Sixty-ninth Legislature enacted Senate Bill
No. 245, which permits private groups to contract with a county
for additional police personnel. Acts 1985, 69th Leg., ch. 219
at 1764. Questions were raised during debate as to the
constitutionality of the practice. You note that Attorney
General Opinion
JM-57 (1983), issued prior to the enactment of
Senate Bill No. 245, determined that such contracts were illegal,
and that this opinion casts doubt on the validity of such
contracts under Senate Bill No. 245. Accordingly, you request an
opinion on the following question:

Whether a county sheriff or constable may contract with a
private homeowners association to furnish it law enforcement
services, particularly in view of the passage of Senate Bill No.
245....

Our answer to your question will focus on the sheriff's office,
but the discussion will also apply to the constable's office. A
sheriff and a constable both hold elective offices established by
the Texas Constitution. Tex. Const. art. V, ss 18, 23. They are
both peace officers, with duties prescribed by statute. Tex.Code
Crim.Proc. art. 2.12; see Tex. Const. art. V, s 23 (sheriff's
duties prescribed by legislature); V.T.C.S. art. 6885 (constable
to perform duties required by law). Both officers have power to
appoint deputies. V.T.C.S. arts. 3902, 6809, 6879a.

Senate Bill No. 245 has been codified as article 1581b-2,
V.T.C.S., to "protect the public interest," a county
commissioners court may contract with a nongovernmental
association for the county to provide law enforcement services in
the geographical area represented by the association. V.T.C.S.
art. 1581b- 2, s 1. The fees for law enforcement services are to
be established by the commissioners court according to statutory
guidelines and paid into the general fund of the county. Id. s
2. The commissioners court must secure the agreement of the
county peace officer who is to provide the services:

Sec. 3. (a) The commissioners court may request the sheriff
of the county or a county official who has law enforcement
authority to provide the services in the geographical area for
which the official was elected or appointed.

(b) If the sheriff or county official agrees to provide the
services, the sheriff or official may provide the services by
using deputies. The sheriff or county official retains authority
to supervise the deputies who provide the services and, in an
emergency, may reassign the deputies to duties other than those
to be performed under the contract. (Emphasis added).

V.T.C.S. art. 1581b-2, s 3.

The sheriff's decisions as to deployment of his deputies within
the county are left to his discretion where this matter is not
specifically prescribed by law. Weber v. City of Sachse, 591
S.W.2d 563 (Tex.Civ.App.--Dallas 1979, no writ). Article 1581b-2, V.T.C.S., purports to allow a private association to control
the sheriff's discretion to deploy his deputies. If the sheriff
agrees to provide his deputies to carry out a contract entered
into under article 1581b-2, V.T.C.S., he relinquishes authority
to order them to other duties, except in an emergency, during the
times the contract assigns them to the geographical area
represented by the private association. Article 1581b-2,
V.T.C.S., attempts to authorize a delegation of the sheriff's
official discretion to a private entity. It is therefore
unconstitutional under article II, section 1 and article III,
section 1 of the Texas Constitution.

Article II, section 1 of the Texas Constitution provides as
follows:

The powers of the Government of the State of Texas shall be
divided into three distinct departments, each of which shall be
confided to a separate body of magistracy, to wit: Those which
are Legislative to one, those which are Executive to another, and
those which are Judicial to another; and no person, or
collection of persons, being of one of these departments, shall
exercise any power properly attached to either of the others,
except in the instances herein expressly permitted.

Article III, section 1, provides:

The Legislative power of this State shall be vested in a
Senate and House of Representatives, which together shall by
styled 'The Legislature of the State of Texas.'

These provisions prohibit the legislature from delegating its
power to enact laws. Brown v. Humble Oil & Refining Co., 83
S.W.2d 935 (Tex.1935). The legislature's power under article V,
section 23 of the Texas Constitution to prescribe the sheriff's
"duties and prerequisites" must be exercised consistently with
article II, section 1, and article III, section 1 of the
constitution. Although the legislature may control the sheriff's
discretion, it may not authorize a private entity to do so.

If the legislature declares a policy and fixes a primary
standard, it may delegate to an administrative body or office the
power to promulgate rules and prescribe details to carry out the
legislative purpose. Brown v. Humble Refining Co., supra;
Margolin v. State, 205 S.W.2d 775 (Tex.Crim.App.1947).
Legislative power may not be delegated to the uncontrolled
discretion of a private individual or entity. Carter v. Carter
Coal Co., 298 U.S. 238 (1936) (wage and hour regulations for coal
industry may not be determined by vote of producers and miners);
Calvert v. Capital Southwest Corp., 441 S.W.2d 247 (Tex.Civ.App.--Austin 1969, writ ref'd n.r.e.), app. dism. 397 U.S. 321 (1970)
(legislature cannot delegate to Congress or Small Business
Administration power to declare requisites of mutual investment
company); Rosner v. Peninsula Hospital District, 36 Cal.Rptr. 332
(Cal.App.1964) (public hospital could not require that staff
physician carry malpractice insurance); City of Bellview v.
Belleview Fire Fighters, 367 So.2d 1086 (Fla.Dist.Ct.App. [1st
Dist.] 1979) (city could not delegate to fire fighting
association all control over fire protection, including hiring of
firemen and setting of fire fighting policies); C. Curtis Martin
Investment Trust v. Clay, 266 S.E.2d 82 (S.C.1980) (former
private owner of publicly owned sewer system could not have power
to approve or disapprove connections to sewer system); Willis v.
Town of Woodruff, 20 S.E.2d 699 (S.C.1942) (city could not make
issuance of building permit for filling station contingent on
permission from surrounding property owners); Attorney General
Opinions
H-41 (1973) (legislature could not empower a private
association to regulate the relationship between dentist,
patient, and third party which provides patient's dental
benefits); C-73 (1963) (questioned whether Texas State Board of
Examiners in Optometry could make adoption of rules contingent on
two-thirds vote of licensed optometrists). See also Spann v.
City of Dallas, 235 S.W. 513 (Tex.1921) (ordinance which makes
construction of a business in a residential district contingent
on consent of adjacent property owners is void as improper
exercise of the police power); Texas Pharmaceutical Assn. v.
Dooley, 90 S.W.2d 328 (Tex.Civ.App.--Austin 1936, no writ)
(finding invalid statute authorizing State Board of Pharmacy to
transfer licensing fees to private corporation not under state
control).

The legislature may use a private entity to implement its
policy, but may not cede legislative discretion to that entity.
See Attorney General Opinions M-68 (1967); V-736 (1948); V-265
(1947) (authority of state licensing agency to use examination
prepared by private testing service). See also Holmes v. Hoemako
Hospital, 573 P.2d 477 (Ariz.1977) (public hospital's requirement
that staff physicians have malpractice insurance is not improper
delegation); Parker v. Board of Behavioral Science Examiners,
125 Cal.Rptr. 96 (Cal.App.3d 1975) (requirement that licensees
have graduated from an accredited institution does not delegate
legislative authority to accrediting association).

Under a contract authorized by article 1581b-2, V.T.C.S., a
nongovernmental body could insist that deputies assigned to
patrol its property remain there, even if the public interest
would be better served by their deployment elsewhere. The
statute is not a legislative limit on the sheriff's discretion,
but a legislative attempt to authorize a private entity to
control the sheriff's discretion. The nongovernmental
association need not fulfill any requirements aside from
readiness to pay for law enforcement services. No statutory
controls are included to insure that contracts for law
enforcement services will carry out the stated purpose of
protecting the public interest. V.T.C.S. art. 1581b-2, s 1. The
statute instead serves the interest of nongovernmental
associations in guaranteeing themselves a particular level of law
enforcement services. We conclude that article 1581b-2,
V.T.C.S., is not a valid exercise of legislative power. Its
enactment does not alter the conclusion of Attorney General
Opinion
JM-57 .

SUMMARY

Article 1581b-2, V.T.C.S., which attempts to authorize a
county sheriff or constable to contract with a nongovernmental
entity to provide law enforcement services is invalid, as an
attempt to delegate legislative power to a private entity in
violation of article II, section 1, and article III, section 1,
of the Texas Constitution.